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Technical Assistance FAQs

In addition to providing training, resources, and support to State Ombudsmen and program representatives, NORC is responsible for responding to technical assistance requests. NORC staff respond to a variety of requests across the country. Technical assistance requests often involve questions regarding program management, issue advocacy, systems advocacy, and ombudsman skills training. In order to share our technical responses more broadly, this page archives frequently asked TA requests in a concise format. If you have a question or need assistance, please email ombudcenter@theconsumervoice.org.

NOTE: Click on the questions to reveal the response.


Abuse, Neglect, and Exploitation

(1) Based on the duties and requirements for the LTCOP outlined in the Older Americans Act and final LTCOP rule, how should a LTCO proceed if she personally witnesses abuse, gross neglect, or exploitation of a resident?

Based on the duties and requirements for the LTCOP outlined in the Older Americans Act and final LTCOP rule, how should a LTCO proceed if she personally witnesses abuse, gross neglect, or exploitation of a resident?

The Ombudsman program investigates and resolves complaints on behalf of residents, but the LTCO program is unique in that its goal is to resolve the complaint to the “satisfaction of the resident or complainant” as opposed to seeking to “substantiate” a complaint by gathering evidence to prove the allegation occurred (NORS Instructions, ACL). This difference means that the LTCO program does not have the same standard of evidence required for complaint investigation and resolution as other entities, such as Adult Protective Services, state survey agency and law enforcement. The investigation by other entities seeks evidence to demonstrate that laws or regulations were broken. Since the LTCOP’s primary goal is to resolve complaints to the satisfaction of the resident, the LTCO seeks resolution “on behalf of a resident regardless of whether violation of any law or regulation is at issue”. However, according to the Older Americans Act (OAA) LTCO are also supposed to seek remedies to protect the “health, safety, welfare, and rights of all residents [(OAA of 1965. Section 712 (a)(3)(A)].

Based on the duties and requirements for the LTCOP outlined in the Older Americans Act and final LTCOP rule, how should a LTCO proceed if she personally witnesses abuse, gross neglect, or exploitation of a resident? The OAA does not provide direction regarding the disclosure of information and reporting of suspected abuse when a LTCO witnesses abuse or the resident is unable to provide consent. However, the final LTCOP regulations require that state LTCOP procedures for disclosure shall provide that (45 CFR 1327.19):

  • The LTCO shall seek informed consent from the resident, or resident representative, and follow resident direction.

If the resident cannot communicate informed consent and does not have a representative, the LTCO shall:

  • Open a case with Ombudsman/representative as the complainant,
  • Follow complaint resolution procedures, AND
  • Refer and disclose information to facility management and/or appropriate agency if:
    • No evidence that resident would not want referral
    • Reasonable cause to believe that disclosure would be in best interest of resident, AND
    • Representative obtains State Ombudsman approval (or follows program policies).

Ombudsmen must employ advocacy strategies when responding to allegations of abuse, where consent is not given, in order to protect resident confidentiality and do their best to ensure resident safety. For advocacy strategies for this situation and others review the Responding to Allegations of Abuse: The Role and Responsibilities of LTCO technical assistance guide.

For detailed information regarding the LTCOP Final Regulations visit the NORC website for the final rule text, an overview, webinar recordings and additional resources. The Frequently Asked Questions (FAQs) by the Administration for Community Living (ACL) regarding implementation of the LTCOP Rule also provides additional information regarding the role of the Ombudsman program in investigating complaints regarding abuse (see questions 22 and 23).

Some language above adapted from New Long-Term Care Ombudsman Rule, New Opportunities (Becky Kurtz, 2015 SLTCO Conference).

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(2) What advocacy strategies can Ombudsman programs use when investigating complaints regarding abuse in assisted living?

What advocacy strategies can Ombudsman programs use when investigating complaints regarding abuse in assisted living?

As with all LTCO work, advocacy strategies in response to allegations of abuse vary depending on the situation (e.g., type of abuse allegation, type and size of long-term care setting, identity of the perpetrator). For example, a LTCO’s approach in response to an allegation of abuse in a small personal care home may differ from their approach in response to a similar allegation in a large nursing home. Fear of retaliation or the amount of power an individual caregiver has may be greater in a small setting. Refer to the Quick Tips section of the May 2016 issue of the Ombudsman Outlook (archived issues here) for information on key similarities and differences in LTCO advocacy in nursing homes and in assisted living facilities.

Most states have mandatory reporting laws that require certain individuals (e.g., facility staff, social workers) to report suspected elder abuse. However, as reiterated in the Administration on Aging's Frequently Asked Questions for the LTCOP, "both the Older Americans Act and the Rule prohibit reporting of resident-identifying information without the resident’s consent" and "Ombudsman program policies and procedures must exclude the Ombudsman and representatives of the Office from abuse reporting requirements when such reporting would disclose identifying information of a complainant or resident without appropriate consent or court order (45 CFR 1327.11(e)(3))." 

Whether a referral is made to another agency regarding suspected abuse, there are many appropriate actions that LTCO can take to support residents.  Refer to the “What Can A LTCO Do in This Situation” section of the Responding to Allegations of Abuse: Role and Responsibilities of LTCO brief for ideas and examples. LTCO have the responsibility to support residents even if a referral cannot be made.

Facilities are required to protect residents from all forms of abuse and to investigate reports of abuse. Due to the lack of federal regulations for assisted living (e.g., board and care, personal care homes) LTCO need to be familiar with the applicable requirements in your state and know how the process works.

You can use the state and local LTCO Program Assessment: Current Activities in Assisted Living Facilities tip sheets when assessing program activities to support residents in assisted living facilities (ALFs). Regular program self-evaluation and assessment is critical to ensure that resources are maximized and to identify program strengths and areas for improvement. The lack of federal regulations for ALFs and reliance on often minimal state regulations and enforcement means increasing LTCO presence in these facilities and systems advocacy to strengthen the laws, regulations, and policies responsible for these settings is critical. These tools can be useful in assessing LTCOP services in Assisted Living, including the need for systems advocacy related to abuse. 

Resources

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Conflict of Interest

(1) What does the LTCOP Rule say about individual conflict of interest for a State Ombudsman, representatives of the Office, and members of their immediate family?

What does the LTCOP Rule say about individual conflict of interest for a State Ombudsman, representatives of the Office, and members of their immediate family?

The LTCOP Rule provides more clarity regarding conflict of interest (COI) for the Ombudsman and for representatives of the Office (LTCOP Rule p. 7766, third column). The Rule lists COIs which cannot be remedied and others for which a remedy may be possible. The Ombudsman is to avoid COI in designating individuals as representatives and must de-designate representatives with a COI that cannot be removed or remedied.

The Rule lists the following examples of individual COI for a State Ombudsman, representatives of the Office, and members of their immediate family:

(i) Direct involvement in the licensing or certification of a long-term care facility;

(ii) Ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility;

(iii) Employment of an individual by, or participation in the management of, a long-term care facility in the service area or by the owner or operator of any long-term care facility in the service area;

(iv) Receipt of, or right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility;

(v) Accepting gifts or gratuities of significant value from a long-term care facility or its management, a resident or a resident representative of a long-term care facility in which the Ombudsman or representative of the Office provides services (except where there is a personal relationship with a resident or resident representative which is separate from the individual’s role as Ombudsman or representative of the Office);

(vi) Accepting money or any other consideration from anyone other than the Office, or an entity approved by the Ombudsman, for the performance of an act in the regular course of the duties of the Ombudsman or the representatives of the Office without Ombudsman approval; 

(vii) Serving as guardian, conservator or in another fiduciary or surrogate decision-making capacity for a resident of a long-term care facility in which the Ombudsman or representative of the Office provides services; and

(viii) Serving residents of a facility in which an immediate family member resides.

The following are COIs which cannot be remedied if the individual: 

  • Has direct involvement in the licensing or certification of a long-term care facility;
  • Has an ownership or investment interest in a long-term care facility;
  • Receives, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility; or
  • Is employed by, or participating in the management of, a long-term care facility.

There is an additional prohibited COI for the State Ombudsman. That individual cannot have been employed by or participating in the management of a long-term care facility within the previous twelve months. 

States are taking a fresh look at individual COI for staff and volunteers. Some states are finding that individuals who have been serving as a representative of the Office have COIs as defined in the regulations. Avoiding COI in rural areas may be particularly challenging. Another challenge is explaining to a program representative that a COI exists and action is required. The litmus test for a remedy is the impact on the effectiveness and credibility of the work of the program [1324.21 (d)(2)].

The Institute of Medicine's report, Real People, Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act, Chapter 4, Conflicts of Interest, has a few statements that may be helpful in considering how to assess the presence or absence of conflict of interest. Click here for Institute of Medicine Report

Individual Conflicts of Interest: The manner in which ombudsmen conduct themselves may be perceived by others as motivated from interest other than the well-being of the resident. Perception of conflict of interest may be a significant problem for the individual ombudsman, even though the ombudsman may believe that his or her actions are motivated primarily to serve the resident. pp. 114 - 115 

In determining whether a COI exists and if one does, whether the conflict can be remedied, it may be helpful to think of various scenarios that may arise and how the actions of the representative of the Office could be perceived by the resident, staff, and others, as well as the potential impact on the credibility of the program. The impact on the program may extend to situations where opponents of the program or of a position the program has taken, such as a change in a regulation or a law, may find something to publicize as an example of the bias of the program. If a remedy is agreed upon, consider how frequently the Ombudsman will assess the situation to determine whether the remedy is effective. 

It is critical that Ombudsman programs identify, avoid, and remedy conflicts since the appearance of a conflict can damage the public perception and credibility of the program as an independent voice for residents. Periodic review and identification of COI is required. Residents must be able to trust that the Ombudsman has their interest as his or her primary focus, without a sense of loyalty to a previous employer or coworkers. (LTCOP Rule Preamble comments, p.7755)  

As programs review and revise policies to address COIs, NORC and ACL/AoA are available as resources.  Please share newly developed or revised policies, screening tools, and other COI procedures with NORC. 

Resources

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Consent

(1) What does the LTCOP Final Rule say about consent?

What does the LTCOP Final Rule say about consent?

The final rule for State Long-Term Care Ombudsman Programs reinforces the requirement of LTCO to obtain informed consent from a resident, or the resident representative, prior to investigating a complaint or disclosing information and follow resident direction throughout the complaint investigation and resolution process. 

The rule provides the following requirements for duties of the representatives of the Office (representatives are the employees or volunteers designated by the State LTC Ombudsman to fulfill the duties of the LTCO program) regarding obtaining informed consent and providing advocacy for residents unable to provide informed consent. 

1327.19 Duties of the representatives of the Office 

(b) Complaint Processing

(1) With respect to identifying, investigating and resolving complaints, and regardless of the source of the complaint (i.e. complainant), the Ombudsman and the representatives of the Office serve the resident of a long-term care facility. The Ombudsman or representative of the Office shall investigate a complaint, including but not limited to a complaint related to abuse, neglect, or exploitation, for the purposes of resolving the complaint to the resident’s satisfaction and of protecting the health, welfare, and rights of the resident. The Ombudsman or representative of the Office may identify, investigate and resolve a complaint impacting multiple residents or all residents of a facility.

(2) Regardless of the source of the complaint (i.e. the complainant), including when the source is the Ombudsman or representative of the Office, the Ombudsman or representative of the Office must support and maximize resident participation in the process of resolving the complaint as follows:

(i) The Ombudsman or representative of Office shall offer privacy to the resident for the purpose of confidentially providing information and hearing, investigating and resolving complaints.

(ii) The Ombudsman or representative of the Office shall personally discuss the complaint with the resident (and, if the resident is unable to communicate informed consent, the resident’s representative) in order to:

(A) Determine the perspective of the resident (or resident representative, where applicable) of the complaint;

(B) Request the resident (or resident representative, where applicable) to communicate informed consent in order to investigate the complaint;

(C) Determine the wishes of the resident (or resident representative, where applicable) with respect to resolution of the complaint, including whether the allegations are to be reported and, if so, whether Ombudsman or representative of the Office may disclose resident identifying information or other relevant information to the facility and/or appropriate agencies. Such report and disclosure shall be consistent with paragraph (b)(3) of this section;

(D) Advise the resident (and resident representative, where applicable) of the resident’s rights;

(E) Work with the resident (or resident representative, where applicable) to develop a plan of action for resolution of the complaint;

(F) Investigate the complaint to determine whether the complaint can be verified and

(G) Determine whether the complaint is resolved to the satisfaction of the resident (or resident representative, where applicable).

(iii) Where the resident is unable to communicate informed consent, and has no resident representative, the Ombudsman or representative of the Office shall:

(A) Take appropriate steps to investigate and work to resolve the complaint in order to protect the health, safety, welfare and rights of the resident; and

(B) Determine whether the complaint was resolved to the satisfaction of the complainant.

(iv) In determining whether to rely upon a resident representative to communicate or make determinations on behalf of the resident related to complaint processing, the Ombudsman or representative of the Office shall ascertain the extent of the authority that has been granted to the resident representative under court order (in the case of a guardian or conservator), by power of attorney or other document by which the resident has granted authority to the representative, or under other applicable State or Federal law.

Informed consent is not defined in the final rule and in response to a comment asking for a definition the Administration on Aging provided the following response, “we believe that the term ‘‘unable to communicate informed consent’’ improves the clarity of the term ‘‘unable to consent’’ which is used in the Act, related to Ombudsman program access to resident records. Section 712(b)(1)(B)(i)(II) of the Act. Our expectation is that States will operationalize the use of this term by incorporating it into the Ombudsman program’s procedures for resident records and complaint processing. We are also available to provide States with technical assistance should the need arise for further clarity on how to operationalize this term within Ombudsman program operations.” 

Resident empowerment and supporting resident decision-making ability to the greatest extent possible is a core responsibility of LTCO program advocacy. However, conducting an assessment to determine capacity does not fall under the responsibilities of the LTCO program. LTCO use communication skills such as active listening and observation to ensure a resident understands her rights, choices, potential outcomes, and can express her wishes in order to obtain consent and direction. 

Visit the NORC website for more information regarding ethical considerationscommunication skills and advocacy strategies, and promoting resident-centered care

 

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(2) A resident gives an Ombudsman program representative permission to review her medical record as part of the complaint investigation, but she does not want the representative to disclose her name in the process, how can the representative proceed?

A resident gives an Ombudsman program representative permission to review her medical record as part of the complaint investigation, but she does not want the representative to disclose her name in the process, how can the representative proceed?

During a nursing home visit a resident you are familiar with tells you her medications have changed and she wants to know what she is being given. She wants you to check her chart in order to get her current list of medications; however, she doesn't give you permission to speak to staff or let anyone know she is questioning her medications. You inform her that you can’t look at her medical chart without her permission and you would have to share her name to access the chart. Needing to review a resident's medical records without disclosing the resident's name is a challenging situation, what are your next steps?

If a resident gives you permission to investigate her concern and review her medical record, but does not want you to disclose her name, talk with the resident:

  • Discuss the reasons the resident does not want her identity revealed. If this will limit your ability to resolve the issue, discuss this with the resident and tell her you will do as much as possible without revealing her identity. 
  • Explain the resident’s right to look at their medical records, to be informed about medications and other medical care being provided, 
  • Explain the situation,
  • Discuss any potential risks involved in the resident being identified.

If you cannot resolve the issue without revealing her identity, tell her what you’ve done and why you cannot take the case further. If appropriate, encourage the resident to discuss her concern with the Resident Council or:

  • Look for supporting evidence during your regular visits.
  • Look for supporting evidence when visiting other residents; perhaps several other residents share the same issue and you can proceed on their behalf.
  • Inform the resident that you will be available to pursue this issue if she changes her mind. Check back with her regarding this.

What you DON’T want to do:

  • Guarantee that retaliation will not occur.
  • Ask to see several charts to hide the one you are really wanting to see as you would need permission from each resident to even request their chart. 

Oftentimes reviewing medical records may not be the best place to start or may not even be necessary as there are usually other ways to get answers to questions besides, such as:

  • Speaking with the charge nurse or DON,
  • Addressing the issue during a care plan meeting, or
  • Meeting with the doctor. 

When possible, participating in conversations with the resident and appropriate staff is often the most effective, resident-centered way to support a resident and ensure their concerns are addressed. 

Resources

 

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Guardianship

(1) As some Ombudsmen and program representatives have experienced, occasionally the decisions of a guardian may conflict with those of the resident or a guardian may not be acting in the best interest of the resident. How does a LTCO support residents with guardians in these situations?

As some LTCO have experienced, occasionally the decisions of a guardian may conflict with those of the resident or a guardian may not be acting in the best interest of the resident. How does a LTCO support residents with guardians in these situations?

Even residents with guardians should be given the opportunity to make decisions and express preferences to the extent possible and LTCO would assist residents with guardians in asserting their rights. According to the Older Americans Act, LTCO are responsible for identifying, investigating, and resolving complaints, including those regarding the "welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees" [Section 712 (a)(3)(A)(ii)]. Additionally, the State shall ensure LTCO access to records related to investigating a complaint in which the guardian refuses access, the LTCO "has reasonable cause" to believe the guardian is not acting in the best interest of the resident, and gains approval from the State LTCO [Section 712 (b)(1)(B)(ii)].

What Can A LTCO Do?

  • After identifying the resident's wishes and/or needs (if possible), check for the legal documentation outlining the guardianship, as some individuals may present themselves as a guardian without actually being appointed.
  • Consult with your LTCO supervisor and State LTCO
  • Emphasize the importance of resident-centered decision making. Becoming familiar with the National Guardianship Association (NGA) Standards of Practice will help during discussions with guardians, residents, facility staff, and others. The standards include guidelines for the guardian to make decisions based on informed consent (when possible) and decisions that are the least restrictive on the person's independence and self-determination, as well as supporting relationships and social connections consistent with the person under guardianship's preferences.
  • Gain an understanding about guardianship in your region and state. For example, is there a state and/or regional guardianship program, is there a multi-disciplinary task force to discuss guardianship issues (e.g. WINGS), are there state long-term care facility regulations regarding guardianship and residents' rights?
  • Develop relationships with and educate the probate court and/or public guardianship program about residents' rights and the role of the LTCO program.
  • Review resources regarding guardianship and the role of LTCO on the NORC website and discuss these issues with your LTCO staff and volunteers (e.g. Making Guardianship Work for Vulnerable Elders, Guardianship: Challenges, Opportunities, and Advocacy, Informational Brief on Unbefriended Elders).

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Transfer/Discharge

(1) How can an Ombudsman program representative support a resident during a discharge hearing?

How can an Ombudsman program representative support a resident during a discharge hearing?

As a resident advocate, LTCO may be asked by a resident (or a resident's legal representative) to attend a discharge appeal hearing in order to support a resident, represent a resident, or act as a witness. There are no federal requirements or guidance that prohibits LTCO from either representing or serving as a witness during appeal hearings and the role of LTCO in hearings varies across the country.  

The most common ways a LTCO supports a resident facing a discharge hearing include: informing residents of their right to an appeal, explaining the appeal process, offering to support the resident during the process (e.g. advocacy preventing the discharge, communicate with the facility staff and others as necessary related to the discharge plan and/or appeal, attend the hearing), and referring the resident to legal aid for legal representation. Since residents can act as their own representative “or use legal counsel, a relative, a friend, or other spokesman” [42 CFR 431.206(b)(3)] and per the Older Americans Act LTCO shall “represent the interests of the residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents” some LTCO represent the resident during the hearing or provide information as a witness. 

As long as LTCO are supporting the resident’s wishes and the resident wants them to act on their behalf these activities fall within the responsibilities of a LTCO. However, some LTCO programs refer residents to legal counsel for representation feeling that legal counsel is the best fit for this role due to their legal expertise and/or they don’t want to provide additional training to LTCO to act in this role.  The Administration on Aging responded to a comment regarding the final LTCOP rule that said "Ombudsman programs are not adequately equipped to undertake the requirement to pursue "administrative, legal, and other remedies" providing additional support for the role of the LTCO during an appeal hearing:  

AoA Response: We note that this is not a new requirement, but has long been required by the Act at section 712(a)(3)(D) and (g)(2). Our intent in finalizing this rule is to help provide additional clarity around this expectation. To further clarify the meaning of §1327.13(a)(5), we provide the following examples of ways States can fulfill this requirement:

1. Ombudsman assures individual resident access to an administrative remedy: A resident receives an involuntary discharge notice that provides a notice of right to a fair hearing. The Ombudsman makes sure the resident knows how to request the hearing and is informed of available supports to make sure his/her interests are represented in the process. The Ombudsman program could, for example, refer the resident to a non-profit legal services program to file the appeal and represent the resident interests at the hearing, or provide in house legal counsel to represent the resident, and/or provide a representative of the Office to accompany the resident to the hearing as emotional support. Alternatively, a representative of the Office could serve as a spokesperson for a resident in a hearing as provided in 42 CFR 431.206(b)(3).

For additional information regarding transfer and discharge visit the NORC website.

 

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Transfer/Discharge Notices

(1) What do the 2017 revised nursing home regulations say about sending a copy of transfer or discharge notices to the Ombudsman program?

What do the 2017 revised nursing home regulations say about sending a copy of transfer or discharge notices to the Ombudsman program?

As of November 28, 2016, according to section 483.15(c)(3)(i) of the new regulations, a facility must send a copy of the written transfer or discharge notification to the representative of the Office of the State Long-Term Care Ombudsman before a resident is transferred or discharged. It is mandated in section 483.15(c)(4)(i) that a facility must send the notification of transfer or discharge at least 30 days prior to a resident being transferred or discharged. This new requirement is part of the Requirements for Participation published in the Federal Register on October 4, 2016, by the Centers for Medicare & Medicaid Services (CMS).

The revised regulations were recently incorporated into the State Operations Manual (SOM), Appendix PP -Guidance to Surveyors for Long-Term Care Facilities. The provisions regarding transfer/discharge notices are found in F-tag 203 below, the new language is in bold

F203

§483.15(c)(3) Notice before transfer. 

Before a facility transfers or discharges a resident, the facility must— 

(i) Notify the resident and the resident’s representative(s) of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand. The facility must send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman. 

(ii) Record the reasons for the transfer or discharge in the resident’s medical record in accordance with paragraph (c)(2) of this section; and 

(iii) Include in the notice the items described in paragraph (c)(5) of this section. 

§483.15(c)(4) Timing of the notice.

(i) Except as specified in paragraphs (c)(4)(ii) and (c)(8) of this section, the notice of transfer or discharge required under this section must be made by the facility at least 30 days before the resident is transferred or discharged. 

(ii)Notice must be made as soon as practicable before transfer or discharge when— 

(A) The safety of individuals in the facility would be endangered under paragraph (c)(1)(ii)(C) of this section; 

(B) The health of individuals in the facility would be endangered, under paragraph (c)(1)(ii)(D) of this section; 

(C) The resident’s health improves sufficiently to allow a more immediate transfer or discharge, under paragraph (c)(1)(ii)(B) of this section;

(D) An immediate transfer or discharge is required by the resident’s urgent medical needs, under paragraph (c)(1)(ii)(A) of this section; or 

(E) A resident has not resided in the facility for 30 days. 

§483.15(c)(5) Contents of the notice.

The written notice specified in paragraph (b)(3) of this section must include the following:

(i)The reason for transfer or discharge; 

(ii)The effective date of transfer or discharge; 

(iii)The location to which the resident is transferred or discharged; 

(iv)A statement of the resident’s appeal rights, including the name, address (mailing and email), and telephone number of the entity which receives such requests; and information on how to obtain an appeal form and assistance in completing the form and submitting the appeal hearing request; 

(v)The name, address (mailing and email) and telephone number of the Office of the State Long-Term Care Ombudsman; 

(vi)For nursing facility residents with intellectual and developmental disabilities or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Pub. L. 106-402, codified at 42 U.S.C. 15001 et seq.); and 

(vii)For nursing facility residents with a mental disorder or related disabilities, the mailing and email address and telephone number of the agency responsible for the protection and advocacy of individuals with a mental disorder established under the Protection and Advocacy for Mentally Ill Individuals Act. 

§483.15 (c)(6) Changes to the notice.

If the information in the notice changes prior to effecting the transfer or discharge, the facility must update the recipients of the notice as soon as practicable once the updated information becomes available. 

 

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(2) Do the revised federal nursing home regulations require nursing homes to send a copy of all transfer/discharges notices, including transfer or discharge initiated by a resident?

Do the revised federal nursing home regulations require nursing homes to send a copy of all transfer/discharges notices, including transfer or discharge initiated by a resident?

Per section 483.15(c)(3), prior to the transfer or discharge nursing homes must provide written notification to the resident and the resident’s representative(s), and send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman (“Office”). Residents can only be discharged due to one of the reasons included in 483.15(c)(1)(i). The regulations do not address transfers or discharges initiated by a resident. However, in response to comments about this requirement, CMS states in the preamble that this requirement “will apply primarily to residents who are involuntarily discharged from the facility and does not include residents who request the transfer or who are transferred on an emergency basis to an acute care facility.” 

In May 2017, CMS provided additional clarification about this requirement in the Survey & Certification memo (17-27-NH) stating the following:

A. Facility-Initiated Transfers and Discharges In situations where the facility has decided to discharge the resident while the resident is still hospitalized, the facility must send a notice of discharge to the resident and resident representative, and must also send a copy of the discharge notice to a representative of the Office of the State LTC Ombudsman.  Notice to the Office of the State LTC Ombudsman must occur at the same time the notice of discharge is provided to the resident and resident representative, even though, at the time of initial emergency transfer, sending a copy of the transfer notice to the ombudsman only needed to occur as soon as practicable as described below. 

For any other types of facility-initiated discharges, the facility must provide notice of discharge to the resident and resident representative along with a copy of the notice to the Office of the State LTC Ombudsman at least 30 days prior to the discharge or as soon as possible.  The copy of the notice to the ombudsman must be sent at the same time notice is provided to the resident and resident representative.

Emergency Transfers When a resident is temporarily transferred on an emergency basis to an acute care facility, notice of the transfer may be provided to the resident and resident representative as soon as practicable, according to 42 CFR 483.15(c)(4)(ii)(D).  Copies of notices for emergency transfers must also still be sent to the ombudsman, but they may be sent when practicable, such as in a list of residents on a monthly basis. 

B. Resident-Initiated Transfers and Discharges A resident-initiated transfer or discharge means the resident or, if appropriate, the resident representative has provided verbal or written notice of intent to leave the facility.  The medical record must contain documentation or evidence of the resident’s or resident representative’s verbal or written notice of intent to leave the facility.  A resident’s expression of a general desire or goal to return home or to the community or elopement of a resident who is cognitively impaired should not be taken as notice of intent to leave the facility.  For resident-initiated transfers or discharges, sending a copy of the notice to the ombudsman is not required.

 

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(3) Do the new regulations require nursing homes to give residents written notice prior to room changes? If so, do nursing homes have to send a copy of those notices to a representative of the Ombudsman program?

Do the new regulations require nursing homes to give residents written notice prior to room changes? If so, do nursing homes have to send a copy of those notices to a representative of the Ombudsman program?

Per section 483.10(e)(6) nursing facilities are now required to send written notice, including the reason for the change, before the resident’s room or roommate in the facility is changed. In the definitions for the new regulations, “transfer and discharge” includes the movement of a resident outside the certified facility whether that bed is in the same physical plant or not; it does not refer to the movement of a resident to a bed within the same certified facility (483.5). By this definition, a room change is not considered “transfer or discharge” as long as the resident is moving between rooms in the same certified facility. Due to room changes not being classified as “transfers or discharges,” the facility is not required to send a copy of the room change notification to a representative of the Ombudsman program. 

NORC included Ombudsman program considerations regarding receiving and responding to transfer and discharges notices in the November issue of the Ombudsman Outlook and additional information regarding the revised regulations is available on the revised nursing home regulations page.

 

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